I posted earlier today about the two opinions controlling the outcome in Jeppesen Dataplan, today's big Ninth Circuit case, and am now writing with an overview of the five-vote dissent in that case by Judge Hawkins (starting at p. 13558 of the slip opinion). I also want to highlight an aspect of the dissent that concerns a central but often-overlooked issue in the state secrets debate.
The dissent by Judge Hawkins disagrees with the majority opinion with respect to whether the state secrets privilege can be used as a basis for dismissal of a suit at the pleading stage. This is a central issue in the larger state secrets privilege debate. Judge Hawkins argues that the privilege should function only as a limit on the discoverability or admissibility of particular items of evidence. At the pleading stage, he argues, it should serve at most only to spare parties from the effect of Federal Rule of Civil Procedure 8(b)(6), not as a basis for dismissal of the complaint.
Under Rule 8(b)(6), the failure to admit or deny an allegation in a pleading is treated as an admission of the alleged fact. Judge Hawkins notes that when this issue arises with the Fifth Amendment privilege against self-incrimination, the solution is to override Rule 8(b)(6) and thus permit the party not to admit or deny a particular allegation without adverse consequence. The same should be true here, he argues. (13566) On this view, the parties should file a responsive pleading addressing whichever allegations can be addressed, invoking the privilege as to the rest (rather like a Glomar response). The case then would proceed to discovery, where the privilege might again be raised as needed, and if in the end this exposes the plaintiff to summary judgment, so be it.
Notably, the dissent does not clearly concede that the privilege can be used even in this limited fashion. In a footnote (n. 12 p. 13567), it asserts that it “is not at all clear that the Reynolds privilege can be asserted at the pleading stage,” suggesting that even the pleading-obligation override suggested above might not be necessary. But let's set that hedge aside; it seems rather obvious that the privilege must have some impact at the pleading stage insofar as pleadings can oblige parties to admit or deny facts that may be closely-guarded secrets. The serious question is whether the Rule 8(b)(6) solution works.
Those who are concerned about efforts to limit the state secrets privilege should not dismiss this Glomar-style solution out of hand. In at least some contexts, the combination of being excused from pleading (at least as to some allegations) combined with the right to resist discovery of protected information will expose plaintiffs to summary judgment, thus producing the same outcome as a pleadings-stage dismissal--with much greater litigation cost but also, one hopes, less doubt about the fairness of the process. One can quibble about whether the efficiency/legitimacy tradeoff would be worthwhile in such a case, of course, but setting that aside this approach does seem to put the government in the same place at the end of the day. Or does it?
When might this approach not suffice? Most obviously, it doesn't do much good when the defendant has a defense that cannot be asserted without resort to protected information. That said, it appears to be common ground among all the judges in today's en banc decision that in this scenario,the privilege can be used to dismiss a suit; note that the dissent references this possibility in the final lines of that opinion. If one accepts this, then I see no reason why the dispositive motion cannot occur at the outset of the litigation.
The question I have for readers--something I'm trying to understand better--is whether there are scenarios where the case should not go forward that would not be covered either by the summary judgment scenario or the precluded-defense scenarios identified above. If you have a thought on this point, email me (see the contact info on the sidebar if you don't have my UT address).
Now, back to the dissent. It goes on to assert that the privilege attaches only to particular items of evidence, not to the underlying facts themselves. (13568) On that view, there is no sense in saying that the privilege can attach to the very subject matter of an action or that prospective developments in the case necessarily will require consideration of protected information. This strikes me as problematic; information can be an important state secret irrespective of whether that information manifests in some particular piece of evidence.
One other point about the dissent worth noting. It opens with the conspicuous assertion that the privilege “is a judicial construct without foundation in the Constitution.” (13559) This is a point of serious contention, tied up with the debate over whether and to what extent Congress could legislate with respect to the privilege. For my part, I think this debate is a bit overblown. One can think that the privilege is justified at least in part on constitutional grounds without commiting to any particular position on the power of Congress to legislate in this area.